The Corner

Law & the Courts

47 Marches Later, Roe Is Still Indefensible

Pro-life demonstrators carry a banner outside the Supreme Court during the 47th March for Life in Washington, D.C., January 24, 2020. (Kevin Lamarque/Reuters)

Today was the 47th annual March for Life in Washington. Thousands of Americans gathered from across the country to protest the scourge of legal abortion christened by the Supreme Court’s 1973 decision in Roe v. Wade. The intensity of the March is, in no small part, a response to the gall of the Burger Court, which took it upon itself to remove the abortion question from the democratic process through — to be more charitable than Roe‘s Justices deserve — a tendentious understanding of the Constitution’s implied privacy rights.

To be less charitable — and more honest — the Court’s decision was and remains legally indefensible. No reasonable person alive during the Founding era understood the Ninth Amendment, a basic recitation of the natural law, to include a right to kill an unborn child. To so torture the Ninth and 14th Amendment as to “discover” a “right” lurking deeply therein is to make a mockery of the constitutional law and the federal judiciary. Indeed, as the late pro-choice legal scholar John Hart Ely wrote, Roe “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

Today’s Court is under no obligation to pretend otherwise.

“When faced with a demonstrably erroneous precedent,” Justice Clarence Thomas wrote in his concurrence in Gamble v. United States, “my rule is simple: We should not follow it.”

One hopes, if in vain, that the nine judges currently sitting on the Court see today’s March for Life as a definitive rebuke of their imperious predecessors. Few decisions in American history have been more “demonstrably erroneous” than Roe.

Most Popular

Elections

Bernie’s Huge Victory

Bernie had a massive night in Nevada, with a diverse nomination-winning-type coalition. According to the entrance poll, he won whites and Hispanics and did well among blacks. He won men and women. He won college graduates and did particularly well with non-college graduates. He won Democrats and independents. ... Read More
Elections

Bernie’s Huge Victory

Bernie had a massive night in Nevada, with a diverse nomination-winning-type coalition. According to the entrance poll, he won whites and Hispanics and did well among blacks. He won men and women. He won college graduates and did particularly well with non-college graduates. He won Democrats and independents. ... Read More

Elon Musk’s Plan to Settle Mars

He who follows Freedom, let him leave his homeland, and risk his life. — Adam Mickiewicz, Polish poet, 1832 Last week my wife Hope and I traveled to Boca Chica, Texas, to meet with Elon Musk. While we talked inside the SpaceX onsite headquarters, a mariachi band played outside, providing entertainment for ... Read More

Elon Musk’s Plan to Settle Mars

He who follows Freedom, let him leave his homeland, and risk his life. — Adam Mickiewicz, Polish poet, 1832 Last week my wife Hope and I traveled to Boca Chica, Texas, to meet with Elon Musk. While we talked inside the SpaceX onsite headquarters, a mariachi band played outside, providing entertainment for ... Read More
U.S.

Women’s Sports Should Be Women’s Sports

Transgender sports policies make a mockery of women’s competition. Just look at the state of Connecticut. At the 2018 state open for women’s track and field, two young men identifying as transgender took first and second place in the 100m race. Their participation not only deprived young women of their ... Read More
U.S.

Women’s Sports Should Be Women’s Sports

Transgender sports policies make a mockery of women’s competition. Just look at the state of Connecticut. At the 2018 state open for women’s track and field, two young men identifying as transgender took first and second place in the 100m race. Their participation not only deprived young women of their ... Read More
Elections

Bernie’s Houses

Mike Bloomberg scored a hit -- a palpable hit -- in the debate this week when he pointed back at Bernie Sanders and said: “What a wonderful country we have, the best-known socialist in the country happens to be a millionaire with three houses.” Many conservatives laughed and cheered and wondered why Bernie ... Read More
Elections

Bernie’s Houses

Mike Bloomberg scored a hit -- a palpable hit -- in the debate this week when he pointed back at Bernie Sanders and said: “What a wonderful country we have, the best-known socialist in the country happens to be a millionaire with three houses.” Many conservatives laughed and cheered and wondered why Bernie ... Read More

Escape from Wuhan

The onset of the crisis in Wuhan startled me like a jump scare in a horror movie. You’ve seen the kind I mean. The audience is led to believe that the monster, psycho killer—or what have you—pursuing the intended victim is still distant. Then whatever it is stands up from behind, leaps out in front, bursts ... Read More

Escape from Wuhan

The onset of the crisis in Wuhan startled me like a jump scare in a horror movie. You’ve seen the kind I mean. The audience is led to believe that the monster, psycho killer—or what have you—pursuing the intended victim is still distant. Then whatever it is stands up from behind, leaps out in front, bursts ... Read More